Settlement and Reform of the Civil Justice System: How Settlement Is Changing the Practice of Law

The central feature of reforms to civil justice in common law jurisdictions is the shift away from adjudication towards settlement. Settlement is now commonly regarded as the primary objective of the civil justice system to the extent that the term 'vanishing trials' has been used to describe the dramatic decline in litigation following the introduction of the Woolf Reforms to civil justice in England and Wales. This article argues that settlement must now be regarded as a form of civil justice in its own right and is also indispensable to improving access to adjudication, which is correctly regarded as a public good. Adjudication which develops precedent can also enhance settlement to the extent that parties frequently bargain 'in the shadow of the law. Although settlement and adjudication are distinct processes it is arguable that the relationship between settlement and adjudication is complementary rather than competitive. The importance of settlement in the new legal landscape raises questions about the anatomy of settlement. Such questions include whether settlement is appropriate, and if so the timing of settlement and which settlement process is most likely to satisfy the parties interests and needs. Finally, it will be argued that conventional adversarial advocacy is not well matched to the explicit institutional emphasis on settlement; the developing role of lawyers as conflict resolution advocates will be explored within the context of recent New Zealand legislation which emphasises the primary role of settlement in resolving civil disputes.